When a federal agency like DCSA or DoD asks a South Carolina sheriff or court for someone's arrest history for a security clearance, do they have to provide it?

Plain-English summary

The federal Defense Counterintelligence and Security Agency (DCSA) runs about 4 million national security background investigations a year for over 140 federal agencies. To do that, federal investigators routinely contact local sheriffs, police departments, and clerks of court asking for a person's arrest, charge, and disposition records. Special Agent McCann told the South Carolina AG that 8 police departments, 5 sheriff's offices, 9 courts of record, and 2 state or county criminal justice agencies in South Carolina were not complying with these requests. He asked whether they were legally required to.

The AG, through Assistant Attorney General Sabrina Todd, said yes. 5 U.S.C. § 9101, enacted in 1985, sets up a mandatory disclosure regime: when a "covered agency" (DoD, State, FBI, DHS, ODNI, OPM, CIA, FAA, and others) submits a request for criminal history record information (CHRI) on a subject who has signed a written consent, every state or local "criminal justice agency" must release the records. The statute contains an express preemption clause, 5 U.S.C. § 9101(b)(4), that overrides any conflicting state law that would otherwise restrict disclosure.

Two practical guardrails sit on top of the disclosure duty. First, the request must come with the subject's signed consent (the SF-86 release or its equivalent). The local agency may ask for a copy if one is not enclosed. Second, an agency may charge a fee, but only enough to cover the reasonable cost of producing the records.

What this means for you

If you are a sheriff or police records officer

When a DCSA or other covered-agency special agent shows up with a CHRI request and a signed release, you must comply. The federal preemption clause means South Carolina record-restriction statutes do not give you a basis to refuse. Practical steps:

• Confirm the requesting agency is on the § 9101(a)(6) covered-agency list (DoD, State, DOT, OPM, CIA, FBI, DHS, ODNI, certain executive agencies authorized to do background investigations, and contractors acting for those agencies).
• Confirm the subject's signed consent is attached or available.
• Release arrest, indictment, charge, disposition, sentencing, supervision, and release information you have on file.
• You may charge a reasonable fee to cover the production cost. You may not charge a market-rate fee.
• You do not need to query SLED or NCIC databases for the requester. Just provide what your agency has on file.

If you have been refusing these requests, flip your policy. The AG opinion is now public guidance to comply, and persistent non-compliance could end up in a federal congressional report.

If you are a clerk of court

Court records of arrests, indictments, dispositions, and sentences fall within the § 9101 definition. When a federal background investigator brings a properly documented request, comply the same way you would with any FOIA-exempt records request that has a federal mandate behind it.

If you are a federal background investigator

The AG opinion is your point of use when a South Carolina CJA refuses or delays. Cite Op. S.C. Att'y Gen., September 3, 2025 (the McCann opinion) along with the statute, and route persistent non-compliance through the AG's office for a follow-up call. The opinion was authored at the Solicitor General level and reviewed by Robert Cook.

If you are the subject of a national security investigation

You have already signed the release if your investigator is making § 9101 requests. The records that get pulled are limited to your arrest, charge, and disposition history. The covered agency cannot use the information for purposes outside of § 9101(b)(1) (security clearance, sensitive position eligibility, military fitness, public-trust position eligibility, basic suitability, HSPD-12 credentialing, FAA checks) and must let you see your own file on request.

Common questions

Q: Doesn't South Carolina's privacy law restrict access to police records?
A: It does for many purposes, but § 9101(b)(4) expressly preempts conflicting state law for federal national security background checks. The federal disclosure obligation overrides the usual SLED rules.

Q: What if no signed consent is attached?
A: § 9101(c) requires written consent. If the request does not come with one, you can ask the federal investigator to provide a copy. Once you have it, you must release the records.

Q: Can we charge for our time?
A: Yes, but the fee may not exceed the reasonable cost of providing the information. § 9101(b)(3). A modest copying or processing fee is fine; a market-rate background check fee is not.

Q: What types of records does this cover?
A: § 9101(a)(2) covers identifiable descriptions of arrests, indictments, informations, formal charges, dispositions, sentencing, correction supervision, and release. It does not cover intelligence files, investigative work product, informant identities, or other non-CHRI records.

Q: Which federal agencies count as "covered agencies"?
A: § 9101(a)(6) lists DoD, State, Transportation, OPM, CIA, FBI, DHS, ODNI, plus any other Executive agency authorized to conduct background investigations, plus contractors who do background investigations for those agencies. DCSA falls under DoD.

Q: What if the federal investigator is asking us to query SLED's database for them?
A: They should not be. The opinion notes that DCSA explicitly does not request CJAs to query state or national databases. Your obligation is limited to releasing what your agency has on file.

Q: What happens if our agency keeps refusing?
A: § 9101 imposes a federal mandate. Continued non-compliance can be reported by the federal agency to congressional oversight committees (a statutory reporting requirement), and the federal agency could potentially seek injunctive relief in federal court.

Background and statutory framework

5 U.S.C. § 9101 was enacted in 1985 to solve a recurring federal problem: state and local laws sometimes restricted access to criminal records, which made national security investigations harder. The conference report (H.R. Conf. Rep. No. 99-373) noted that most jurisdictions already cooperated voluntarily, and the statute aimed to "provide a mandatory mechanism" for the holdouts without disrupting voluntary cooperation elsewhere.

The statute defines three core terms: a "criminal justice agency" is a state or local court or any state or local agency that performs criminal justice administration under statute or executive order and dedicates a substantial part of its budget to that function (§ 9101(a)(1)); "criminal history record information" is identifying information about arrests, charges, dispositions, sentencing, supervision, and release (§ 9101(a)(2)); and a "covered agency" is one of the listed federal agencies plus contractors acting for them (§ 9101(a)(6)).

The mandatory-disclosure clause, § 9101(b)(1), says criminal justice agencies "shall make available all criminal history record information regarding individuals under investigation by that covered agency." § 9101(b)(4) is the express preemption clause that overrides conflicting state law. § 9101(c) requires written consent. § 9101(d) restricts how covered agencies may use or further disclose the information.

The South Carolina AG's normal practice is to avoid opinions on federal law (citing Op. S.C. Att'y Gen., July 26, 2023). The opinion makes a deliberate exception here because the question keeps coming up across agencies in the state, and clear guidance speeds up compliance.

Citations and references

Federal statutes:
- 5 U.S.C. § 9101 (Criminal history record information for national security)

State statutes:
- S.C. Code §§ 1-7-90, 1-7-100, 1-7-110 (AG advisory authority)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-whether-criminal-justice-agencies-in-south-carolina-are-authorized-and-required-to-release-criminal-history-record-information-to-covered-agencies-under-title-5-of-the-u-s-code-section-9101/
• Original PDF: https://www.scag.gov/media/tpuj0oe1/mccannpj-os-11001-final-opinion-9-3-2025.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

September 3, 2025

P.J. McCann, III

Special Agent, Law Enforcement Liaison
Defense Counterintelligence and Security Agency
Law Enforcement Liaison Office

1900 E. Street NW

Washington, DC 20415

Dear Special Agent McCann:

obtain

Attorney General Alan Wilson referred your letter to the Opinions section for a response.
On behalf of the Defense Counterintelligence and Security Agency (DCSA), you seek assistance
“to resolve issues that Federal Special Agents and Investigators are experiencing when trying to
Criminal History Record Information (CHRI) from Criminal Justice Agencies (CJA)

throughout South Carolina.”

Housed within the United States Department of Defense, DCSA is the largest security

agency in the federal government. As your letter explains:

DCSA conducts 3.8 to 4 million national security personnel vetting investigations
each year safeguarding the integrity and trustworthiness of the federal workforce
for over 140 federal agencies, including such personnel assigned to the U.S.
Department of Justice, Drug Enforcement Administration; Bureau of Alcohol,
Tobacco, Firearms and Explosives; and the United States Marshals Service, This
includes any South Carolina State, Local, Campus, or Tribal law enforcement
officer assigned to these agencies Federal task forces. DCSA connects, engages and
protects 13,000+/- contractor facilities, companies and research educational
institutions cleared for access to classified information (121 facilities in South
Carolina, including Clemson University and the University of South Carolina) that
collaborate with the U.S. Government’s defense involving critical technologies,
research, production, and supply chains. Obtaining CHRI from Federal, State, and
Local CJA is vital to the safety and security of our Nation, these facilities, and
personnel.

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Special Agent P.J. McCann, III
Page 2
September 3, 2025

All investigations are conducted with the knowledge and consent of the individual
being investigated. Upon request, the Special Agent / Investigator is mandated by
law to provide all CHRI repositories and CJA with a release of information
document signed by the individual authorizing our agency to obtain the record
information. Title 5 of the U.S, Code, Chapter 91, §9101 does not require any
additional release or releases to be provided. Additionally, the standard release
signed by the individual being investigated states that the individual authorizes any
Investigator, Special Agent, or other duly accredited representative of OPM, the
Federal Bureau of Investigation, the Department of Defense, the Department of
Homeland Security, the Office of the Director of National Intelligence, the
Department of State, and any other authorized Federal agency, to request criminal
record information about the individual of investigation from CJA for the purpose
of determining eligibility for assignment to, or retention in, a national security
position, in accordance with Title 5 of the U.S. Code, Chapter 91, §9101.

You advise that when a covered agency requests CHRI about an individual, the request will only
be for information that a criminal justice agency has on file regarding any arrests, detentions, or
other contacts with the individual with respect to criminal activity. You specifically note that
DCSA Special Agents and Investigators will not request a criminal justice agency to use any state
or national databases to respond.

You report in your letter that eight police departments, five sheriff's offices, nine courts of
record, and two state or county CJAs in South Carolina are not complying with requests made
pursuant 5 U.S.C. Section 9101. You warn that when a CJA fails to comply with proper requests
for CHRI, DCSA National Security investigations are incomplete and decisionmakers are forced
to make risk determinations without needed information, “unnecessarily putting our Nation and
communities at peril.” Additionally, if DCSA is unable to resolve a CJA’s lack of compliance,
congressional mandate requires the noncompliance be reported to the Federal Senate and House
oversight committees.

With this background in mind, you ask whether Criminal Justice Agencies in South
Carolina “are authorized and required to release criminal history record information to covered
federal agencies,” including DCSA, under Title 5 of the United States Code Section 9101. As
discussed more fully below, it is the opinion of this office that all South Carolina state and local
Criminal Justice Agencies are authorized and required to comply with such requests.

Law/Analvsis

This office is required to offer advisory opinions on the law to the Governor, the General
Assembly, state officers, and the Public Service Commission. S.C. Code Ann. § 1-7-90 (Rev.
2005) (Attorney General required to provide advice and opinions on questions of law to the

Special Agent P.J. McCann, III
Page 3
September 3, 2025

General Assembly and Governor); S.C. Code Ann. § 1-7-100 (Rev. 2005) (Attorney General
required to advise solicitors regarding the duties of their offices); S.C. Code Ann. § 1-7-110 (Rev.
2005) (Attorney General required to advise Secretary of State, State Treasurer, Adjutant General,
Comptroller General, other state officers, and the Public Service Commission regarding legal
questions related to their official business). Additionally, as a courtesy, this office provides advice
and opinions on legal matters to local governments. Ordinarily, this office does not address issues
of federal law. Op. S.C. Att’y Gen., 2023 WL 4918024 (July 26, 2023). However, because
agencies across South Carolina routinely receive requests for criminal history record information
pursuant to 5 U.S.C. § 9101, we offer this opinion to help guide those receiving such requests on
how to respond.

Originally enacted in 1985, 5 U.S.C. Section 9101 outlines access to criminal history
records for national security and other purposes. A report regarding the need for the legislation
noted that a majority of states and local governments were already cooperating by voluntarily
providing CHRI when requested by the relevant federal agencies, but some were not cooperating
either because of policy or state laws limiting access to such information. H.R. Conf. Rep. No.
99-373 at 24, 25 (1985). The statue was designed “provide a mandatory mechanism” for access
to criminal history record information needed for national security purposes without discouraging
existing voluntary cooperation. Id. at 25. The statute provides that “[u]pon request by a covered
agency, criminal justice agencies shall make available all criminal history record information
regarding individuals under investigation by that covered agency... .” 5 U.S.C. § 9101(b)(1). To
emphasize the need for covered agencies to gather the requested information, the statute contains
a clear expression that it is intended to preempt any state or local law. 5 U.S.C. § 9101(b)(4).

Requests are made by a covered agency, which can be any of the following:

(A) The Department of Defense.

(B) The Department of State.

(C) The Department of Transportation.

(D) The Office of Personnel Management.

(E) The Central Intelligence Agency.

(F) The Federal Bureau of Investigation.

(G) The Department of Homeland Security.

(H) The Office of the Director of National Intelligence.

(1) An Executive agency that--
(i) is authorized to conduct background investigations under a Federal statute; or
(ii) is delegated authority to conduct background investigations in accordance with
procedures established by the Security Executive Agent or the Suitability Executive
Agent under subsection (b) or (c)(iv) of section 2.3 of Executive Order 13467 (73 Fed.
Reg. 38103), or any successor thereto.

(J) A contractor that conducts a background investigation on behalf of an agency described

in subparagraphs (A) through (1).

Special Agent P.J. McCann, [I
Page 4
September 3, 2025

5 U.S.C. § 9101(a)(6). Criminal justice agencies that receive the requests include state and local
courts and any state or local agency, or subunit thereof, “which performs the administration of
criminal justice pursuant to a statute or Executive order, and which allocates a substantial part of
its annual budget to the administration of criminal justice.” 5 U.S.C. § 9101(a)(1). Criminal
history record information, or CHRI, is defined in the statute as “information collected by criminal
justice agencies on individuals consisting of identifiable descriptions and notations of arrests,
indictments, informations, or other formal criminal charges, and any disposition arising therefrom,
sentencing, correction supervision, and release.” 5 U.S.C. § 9101(a)(2).

When a South Carolina law enforcement agency, court, or other criminal justice agency
receives a request for CHRI from a covered agency, it must comply. 5 U.S.C. § 9101(a)(1). A
covered agency will only request CHRI on a subject after receiving that person’s written consent.
5 U.S.C. § 9101(c). It is our understanding the consent is customarily presented with the request,
but if not the state or local agency is entitled to ask for a copy. If the state or local agency chooses
to charge a fee for the requested information, the fee must not exceed the reasonable cost of
providing the information. 5 U.S.C. § 9101(b)(3). Once the information is shared, the covered
agency may only disclose or use it for the purposes approved in the statute,! but can also share it
with the subject of the information on request. 5 U.S.C. § 9101(d).

' Requests for CHRI are made for the purpose of:

(A) determining eligibility for--
(i) access to classified information;
(ii) assignment to or retention in sensitive national security duties or positions;
(iii) acceptance or retention in the armed forces; or
(iv) appointment, retention, or assignment to a position of public trust while either
employed by the Government or performing a Government contract; or

(B) conducting a basic suitability or fitness assessment for Federal or contractor employees.

eg

(C) credentialing under the Homeland Security Presidential Directive 12 (dated August 27,
2004); and

(D) Federal Aviation Administration checks. . . .

5 U.S.C. § 9101(b)(1).

Special Agent P.J. McCann, III
Page 5
September 3, 2025

Conclusion

South Carolina’s state and local law enforcement agencies, courts, and other criminal
justice agencies are authorized and required to comply with any request for criminal history record
information made by a covered federal agency provided that the subject of the information has
provided written consent.

Sincerely,

Sabrina C. Todd
Assistant Attorney General

REVIEWED AND APPROVED BY:

Oi GAZ

Robert D. Cook
Solicitor General Emeritus